Holding

The Supreme Court dismissed the appeal, holding that the plea under Section 11‑A was not specifically raised before the High Court and therefore the review petition could not be entertained.

Summary

S.N.S. (Minerals) Ltd. and another challenged the excise authority's order quantifying duty and imposing a penalty on limestone chips. The High Court set aside the penalty but left the duty demand untouched. On appeal, the appellants argued that the High Court should also have struck down the duty demand under Section 11‑A of the Central Excise Act, 1944, contending that this ground was raised in the amended writ petition. The Supreme Court held that no specific plea invoking Section 11‑A was made before the High Court, as the High Court and the respondents' counter‑affidavit expressly noted the absence of such an argument. Consequently, the review petition could not be entertained within the limited scope of review under Section 114 of the CPC, and the appeal was dismissed.

Issues considered

Whether the High Court was bound to strike down the duty demand under Section 11‑A of the Central Excise Act, 1944, when it quashed the penalty.
Whether the plea regarding limitation under Section 11‑A was specifically raised in the writ petition/amended petition, making a review petition maintainable.
What is the scope of a review under Section 114 of the Code of Civil Procedure and Order XLVII, particularly when the ground was not raised earlier?

Legislation cited

Central Excise Act, 1944s. 11-A
Code of Civil Procedure, 1908s. 114

Subjects

Central ExciseSection 11-ALimitationReview PetitionWrit PetitionPenaltyHigh CourtSupreme CourtScope of ReviewCivil Procedure

Judgment

A S.N.S. (MINERALS) LTD. AND ANR.
v. ...
.
"
UNION OF INDIA AND ORS.

FEBRUARY 27, 2007

B [DR. ARIJIT PASA YAT AND TARUN CHATTERJEE, JJ.]

Constitution of India, 1950:

Articles 226 and 136-Review ofjudgment in writ petition-Scope of-
c Review petition filed be/are High Court stating that plea with regard to
demand of duty In terms of s.11-A was raised in amended writ petition. but
High Court did not deal with the same-High Court dismissing review
petition observing that no such plea was raised-Held, since no such
argument was advanced before High Court, keeping in view limited scope
D of review, this is not a fit case warranting interference-Code of Civil
Procedure, 1908-s.J/4-Central Excise Act, 1944-s.ll-A.

Appellants, manufacturer of limestone chips, filed a writ petition before
~
the High Court questioning the order of the Excise authorities quantifying
.~

the liability of appellant no. I for imposition of penalty. The High Court
E quashed the orders as regards imposition of penalty. In the appeal before the
Supreme Court. it was contended that the High Court also ought to have struck
down the demand of duty based on s.11-A of the Central Excise Act, 1944.
The Court dismissed the appeal observing that such an argument was not
answered in the judgment of the High Court. A review petition was then filed
before the High Court, which dismissed the review petition holding that the
F
requisite ground was neither taken in the writ petition nor in the S.L.P. filed
before the Supreme Court. '>-·
In the present appeal it was contended for the appellants-manufacturers
that though in the original petition no such ground was taken but in the
G amended writ petition such a stand was taken. Counsel for the respondents,
on the other hand, contended that no specific plea with regard to duty demanded
in terms ofs.11-A was taken.
i
Dismissing the appeal, the Court

H 376
S.N.S.(MINERALS}LTD.v. U.0.1.[PASAYAT.J.] 377
.. HELD: Even if it is accepted that the plea was taken regarding limitation, A
the same was really not specifically taken. There was no reference to Section
11-A of the Central Excise Act, 1944. From a reading of the order of the High
Court and the counter affidavit filed before this Court in which it has been
specifically urged at paragraphs 9 and IO that no such argument was
advanced, this is not a fit case where any interference is called for, considering B
the limited scope of review. !Paras 9 and 1011380-G; 381-A-BI

Haridas Das v. Usha Rani Banik (Smt.) and Ors. 12006] 4 SCC 78',
relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 804 of2005.
c
From the Judgment and final Order dated 13 .11.2003 of the High Court
of Judicature at Jabalpur (M.P.) in Review Petition No. MCC 403/2002.

A.R. Madhav Rao, Alok Yadav and Rajesh Kumar for the Appellants.

R.G. Padia, T.V. Ratnam and B. Krishna Prasad for the Respondents D
The Judgment of the Court was delivered by

I DR. ARIJIT PASA YAT, J. I. Challenge in this appeal is to the judgment
,. , of a Division Bench of the Madhya Pradesh High Court dismissing the
Review Petition filed by the appellants. This is in essence the second journey E
of the appellants in respect ofa Writ Petition (W.P.No.522/90) filed before the
High Court. The said Writ Petition was disposed of by order dated 3.3.1994.
The same was filed for quashing the proceedings initiated by respondent
No.3 i.e. Superintendent (Preventive) Central Excise, Indore. During the
pendency of the petition, orders were passed quantifying the liability of F
appellant No. I for imposition of p~nalty. These orders were challenged in the
writ petition by amending the same. The High Court quashed the orders so
---1 far as they related to imposition of penalty. Questioning the correctness of
the order an appeal was filed before this Court which was disposed of by
order dated 16.4.2002. Basically, two stands were taken in the appeal. This
Court did not interfere with the order of the High Court on the aspect of G
manufacture. The residual argument was that since the High Court had quashed
the penalty imposed by the Collector, Central Excise by taking a view that the
appellants were under a bona fide belief that they were not liable to pay excise

I. [2006] 3 SCR 87
H
378 SUPREME COURT REPORTS [2007) 3 S.C.R.

A duty on limestone chips, the High Court ought to have struck down the
demand of duty based on Section 11 A of the Central Excise Act, 1944 (in
short the 'Act'). This Court dealt with that aspect of the challenge in the .--
following words:
"""
"The next argument is that the High Court quashed the penalty
B imposed by the Collector, Central Excise, upon the appellants taking
the view the appellants were under a bona fide belief that they were
not liable to pay excise duty on limestone chips. It is submitted that
the High Court should, therefore, have also struck down the demand
of duty based on Section I lA. We have gone through the judgment
of the High Court. We find that no such argument is recorded by the ~
c High Court or answered . If it was the contention of the appellants
that the High Court had not answered an argument that had been
advanced before it, they should have approached the High Court in
review. As it is, we are of the view that only the arguments recorded
by the High Court and answered require our consideration.
D
The appeal is dismissed with costs."

2. A review petition was filed before the High Court, inter alia, taking
the stand that this Court had permitted filing of a review. The same was filed
purportediy on the basis of the observations made by this Court to the effect ~

E that it was the contention of the appellants that the High Court had not , ...
answered an argument that had been advanced before it and if that was the
contention of the appellants they should have approached the High Court in
review. The High Court noted that there was no ground taken in the writ
petition. Leamed counsel appearing for the appellants before the High Court
conceded that no such ground was taken in the earlier S.L.P.
F
3. The High Court was of the view that an application for review was
to be entertained only if such ground was raised in the writ petition before
the Court and the Court had omitted to consider the same. From the records -'r
it was noted that no such ground was raised. The High Court was, therefore,
of the view that no ground for review of the judgment existed and dismissed
G the same.

4. Learned counsel for the appellants submitted that though in the
original writ petition such a stand was not taken but in the amended writ
petition such a stand was taken and, therefore the High Court was not
H
S.N.S.(MINERALS)LTD. v. U.0.1. [PASAYAT,J.] 379
-
·-.,
.,.\
justified in its view. A
5. Per contra, learned counsel for the respondents submitted that though
there was no specific plea in this regard and some vague assertions had been
made, the point was not urged for consideration before the High Court.
Therefore, the review has been rightly dismissed considering the limited
nature of the review. B
6. We find that after the amendment, para I O(G) of writ petition shows
some vague reference to the question of limitation. In fact reference is made
-J therein to paragraph 7. The High Court has categorically stated that no such
stand was taken and in the counter affidavit filed by the respondents before
this Court it has been categorically stated that no such argument was advanced. c
7. The High Court's findings are in the following terms:

"Learned senior counsel for the applicants submits that since in the
facts and circumstances of the present case extended period of five
years under Section I I A could not have been invoked by the D
respondent authorities, the order deserves to be reviewed. Keeping in
view the observation of the Hon 'ble Supreme Court, the counsel was
} asked to point out from the record whether such a contention had
~. been raised before the High Court in the writ petition and any such
ground was taken in the S.L.P. before the Apex Court. Learned counsel E
frankly conceded that such a ground was not taken in the S.L.P. So
far as the entitlement of the applicants for review is concerned, the
petitioner can claim the same only if the petitioner had raised such a
ground in the writ petition before the Court and Court had omitted to
consider the same. From the record, it does not appear that any such
ground was raised in the original writ petition." F

~~ 8. The scope for review has been considered by this Court in several
cases. In a recent case in Haridas Das v. Usha Rani Banik (Smt.) and Ors.,
[2006] 4 sec 78 it was held as follows:

"13. In order to appreciate the scope of a review, Section I 14 of the G
CPC has to be read, but this section does not even adumbrate the
ambit of interference expected of the Court since it merely states that
it "may make such order thereon as it thinks fit." The parameters are
prescribed in Order XL VII of the CPC and for the purposes of this lis,
H
380 SUPREME COURT REPORTS [2007] 3 S.C.R.

A permit the defendant to press for a rehearing "on account of some
mistake or error apparent on the face of the records or for any other
-
sufficient reason". The former part of the rule deals with a situation
attributable to the applicant, and the latter to a jural action which is
manifestly incorrect or on which two conclusions are not possible.
Neither of them postulate a rehearing of the dispute because a party
B had not highlighted all the aspects of the case or could perhaps have
argued them more forcefully and/or cited binding precedents to the
Court and thereby enjoyed a favourable verdict. This is amply evident
from the explanation in Rule I of the Order XL VII which states that
the fact that the decision on a question of law on which the judgment
c of the Court is based has been reversed or modified by the subsequent
decision of a superior Court in any other case, shall not be a ground
for the review of such judgment. Where the order in question is
appealable the aggrieved party has adequate and efficacious remedy
and the Court should exercise the power to review its order with the
greatest circumspection. This Court in Mis. Thungabhadra Industries
D Ltd. (in all the Appeals) v. The Government of Andhra Pradesh
represented by the Deputy Commissioner of Commercial Taxes,
Anantapur, AIR (1964) SC 1372 held as follows:

"There is a distinction which is real, though it might not always
be capable of exposition, between a mere erroneous decision and
E a decision which could be characterized as vitiated by "error
apparent". A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, but lies only for
patent error. Where without any elaborate argument one could
point to the error and say here is a substantial point of law which
F states one in the face and there could reasonably be no two
opinions entertained about it, a clear case of error apparent on
the face of the record wou Id be made out."

9. Even if it is accepted as contended that the plea was taken regarding
limitation, the same was really not specifically taken. There was no reference
G to Section 11-A of the Act.
I0. Learned counsel for the appellants contended that there was no
necessity referring to that provision as indirectly that plea had been taken.
Though the contention was not very happily worded it is stated that this
Court in several cases has held that if there is a bona fide doubt the extended
H
381
-
S.N.S. (MINERALS) LTD. v. U.0.1. [PASAY AT . .J.]

period of limitation available under Section 11 A of the Act does not apply. A
There is no quarrel with this proposition. But the question is whether such
a plea was in fact urged. From a reading of the order of the High Court and
the counter affidavit filed before this Court in which it has been specifically
urged at paragraphs 9 and 10 that no such argument was advanced, we do
not consider this to be a fit case where any interference is called for, considering B
the limited scope of review.

11. The appeal is accordingly dismissed with no order as to costs.

R.P. Appeal dismissed.