TaxTMI 
TaxTMI 
2020 (3) TMI 585
X X X X Extracts X X X X
X X X X Extracts X X X X
....w for the period from July 2004 to April 2014 in terms of the Circular No.978/2/2014-CA dated 7.1.2014 issued by the Central Board of Excise and Customs clarifying that education cess and secondary and higher secondary education cess are not to be calculated on cesses which are levied under the Acts administered by Department/Ministries other than the Ministry of Finance (Department of Revenue) but are only collected by the Department of Revenue in terms of those Acts. 3. In the writ petition, the petitioner had sought two reliefs (i) a direction to the respondents to sanction refund of Rs. 73,60,061/- and (ii) grant of interest at the rate of 18% per annum. By the judgment and order dated 16.6.2016, this court allowed the petition in favour of the applicant by setting aside the order-in-original dated 24.11.2014 and directing the second respondent to forthwith sanction and grant the applicant refund of Rs. 73,60,061/- as claimed vide application dated 17.7.2014. However, as regards the claim of interest at the rate of 18% per annum, this court held that the interest claimed is not backed by any statutory provision and hence, such relief cannot be granted. 4. It is the case of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the test is not whether the decision rendered by this court was taken consciously. Reference was made to the following extract from Mulla: CPC 19th edition" "A review may be granted, whether on any ground urged at the original hearing of the suit or not, whenever the court considers that it is necessary to correct an evident error or omission, and it is immaterial how the error or the omission occurred. Thus, a review was granted where an error on a point of law was apparent on the face of the judgment, for example, failure to apply the law of limitation to the facts found by the court, or failure to consider a particular section of an Act, or part thereof. ... ..... .. Where the court decided the case in accordance with what was described as the Jain law, it was held that this was an error on which a review should be granted as there was no such thing as the Jain Law. Where there is a decision of the Supreme Court bearing on a point and where after that decision a court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, there is an error apparent on the face of the record." 5.3 It was submitted that the test is not as to o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax Officer, Bapatla, 1957-32 ITR 274 : (AIR 1958 Andh Pra 683) (D) the High Court of Andhra has taken the same view." 5.5 Reliance was placed upon the decision of this court in Vijay Textile v. Union of India, 1979 (4) E.L.T. (J 181) (Guj.), wherein the excise authorities had collected certain amount without authority of law and such money was used by the Government for a period of three years. This court directed the respondents to refund the amount so collected without authority of law along with interest at the rate of 12% per annum from the dates of collection of the said amounts till the date of actual repayment. 5.6 Reliance was also placed upon the decision of the Bombay High Court in Pure Drinks Pvt. Ltd. v. Union of India, MANU/MH/0501/1987, wherein the plaintiffs had claimed interest at the rate of 18% per annum on the excess duty collected by the defendants from the date on which the duty was collected till payment. The court held that in the interest of justice, it would be just and fair to award to the petitioners interest at the rate of 12% per annum from the date the duty was collected till payment. 5.7 Reliance was also placed upon the decision of the Calcutta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. 57. In the light of the legal position as enumerated hereinabove, let us examine the grievances of the petitioners in the instant case. In review petition the notice issued was limited to the question of Article 20(1) of the Constitution. It was contended that the judgment of the Court entailed a convert to Islam the liability of prosecution for the offence of bigamy under Section 494 of the Indian Penal Code which would, otherwise not be an offence under the law applicable to him. Section 494 forms part of a substantive law and is applicable to all unless specifically excluded. As no notice has been issued for review of the main judgment which interpreted Section 494 IPC in the manner as narrated h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error and become art error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, CJ in - "Batuk K Vyas v. Surat Borough Municipality" , that no error could be said to be apparent on the face of the record if it was not selfevident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be ..defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....utory provision entitling the petitioner to interest, a mandamus cannot be issued to the revenue to pay interest. It may be noted that while the petitioner in the relief paragraph has prayed for interest at the rate of 18% per annum, at the time of hearing of the petition, no submissions had been made in this regard. Nonetheless, since in the reliefs prayed for a prayer for grant of interest had been made, this court had considered the same and rightly or wrongly, for the reasons set out in the order as recorded hereinabove, declined to grant such relief. 10. In the opinion of this court, once the court has after duly recording reasons, turned down the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application. The Supreme Court in Asharfi Devi v. State of U.P., (2019) 5 SCC 86, has held that it is settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 rule 1 of the Code, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the rate of interest or the date from which such interest is required to be paid has not been mentioned therein. Moreover, except for the fact that in the prayers, the petitioner had prayed for interest as referred to hereinabove, there are no averments whatsoever relating to such claim in the entire petition. 14. A perusal of the submissions advanced by the learned counsel for the respective parties as recorded in the judgment dated 16.6.2016 shows that during the course of arguments also, the learned counsel for the petitioner did not advance any arguments on the question of interest nor was any request made to grant interest on the amount of refund claimed. However, despite the fact that no averments were made in respect of the claim of interest, having regard to the prayers made in the petition, this court in the judgment and order dated 16.6.2016 has held thus:- "19. Insofar as the claim of interest is concerned, the amount admittedly had been paid by the petitioner by way of a mistake. The position of law in this regard was not clear and hence, no fault can be found in the approach of the revenue authorities in retaining such amounts till the time the Circular dated 07....