VIP Industries Ltd vs. CCE (Bombay High Court)

DATE: (Date of pronouncement)
DATE: January 23, 2011 (Date of publication)

Click here to download the judgement (vip_industries_west_coast_review_power.pdf)

High Court has power to review its judgement u/s 260A

S. 35G (9) of the Central Excise Act (= s. 260A (7) of the IT Act) provides that “the provisions of Civil Procedure Code, 1908 relating to appeals to the High Court shall as far as may be apply in the case of appeals under this Section”. Given that only the provisions of the CPC relating to “appeals” are made applicable and not those relating to “review”, the High Court had to consider whether the provisions of s. 114 and Order XLVII of the Civil Procedure Code which confer power on the High Court to review its judgements apply to appeals filed under the Excise Act. The assessee and the department were agreed that the High Court had that power. HELD accepting the claim:

(i) The High Court is a Court of record as envisaged in Article 215 of the Constitution and has inherent powers to correct the record. As the High Court has plenary jurisdiction, it has inherent power of review to prevent miscarriage of justice or to correct grave and palpable errors committed by it. CCE vs. Hongo India (236) ELT 417 (SC) & D.N. Singh vs. CIT 325 ITR 349 (Pat) (FB) followed;

(ii) In dealing with matters under a special enactment, the practice and procedure of the ordinary Court will apply if the special enactment refers to and adopts the practice and procedure to be followed by the ordinary Court. Accordingly, all provisions of the CPC apply to appeals under the Excise Act;

(iii) S. 35G(9) does not restrict the jurisdiction of the High Court to only the provisions of the CPC relating to appeal. S. 35G(9) is enacted out of abundant caution to provide that in respect of matters not dealt with by the special enactment, the provisions of the CPC shall apply. Even if s. 35G(9) were not there, the ordinary law of the court have to be applied in the absence of anything contrary in the special law;

(iv) One of the grounds of review is an error apparent on the face of the record. Where a statute is amended retrospectively, a judgment applying the unamended law constitutes an error apparent on the face of record and can be reviewed.

Note: The contrary view in CIT vs. West Coast Paper Mills 319 ITR 390 (Bom) (included in file) that the High Court has no power u/s 260A to review its judgements was not considered.

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