Union Of INDIA vs. Southern Carbon And Chemicals

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RP/505/2020HC KeralaGSTCNR KLHC01038094202001 October 2020Bench: HONOURABLE MR.JUSTICE S.V.BHATTI7 pages
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Facts

These review petitions were filed by the Union of India and other customs authorities, who were respondents in two earlier writ petitions (WP(C) Nos. 2457/2019 and 2981/2019). The review petitioners sought to correct an alleged patent error in the High Court's judgment dated August 29, 2019. Specifically, they pointed to a sentence in paragraph 4 of the judgment stating that the writ petitions were disposed of by consent. The review petitioners argued that this was an error as they had instructions to challenge the legality of a prior judgment and had referred to the Gujarat High Court's decision in M/s. Amit Cotton Industries Vs. Principal Commissioner of Customs. The respondent writ petitioners did not dispute the fact that the sentence regarding consent was recorded but had no objection to its deletion and substitution to ensure continuity.

Held

The Court found that the sentence stating the writ petitions were disposed of by consent was apparently contrary to the stand of the review petitioners' counsel. Consequently, the Court directed the deletion of this sentence from the judgment dated August 29, 2019. In its place, the Court ordered the incorporation of a substituted sentence: 'Instead of calculating interest on the amounts to be refunded by both parties, this Court is of the view that refund can be directed to be made by the respondents herein after adjusting the amount recoverable from writ petitioners. The writ petition stands disposed of by this judgment'. The Court reasoned that this substitution would correct the apparent error and ensure the continuity of the judgment's reasoning and conclusion. The review petitions were ordered accordingly.

Key Issues

1. Whether the sentence stating that the writ petitions were disposed of by consent in the judgment dated August 29, 2019, constitutes a patent error on the face of the record, given the review petitioners' instructions to challenge a prior judgment and their reliance on the Gujarat High Court's decision in M/s. Amit Cotton Industries Vs. Principal Commissioner of Customs. Contentions: Petitioner (Union of India and others): The inclusion of 'consent' in the judgment is an error apparent on the face of the record because the department was taking steps to challenge the legality of a prior judgment and had referred to the Gujarat High Court's view. They requested the deletion of the consent sentence and incorporation of a revised conclusion that would align with the Gujarat High Court's decision. Respondent (Southern Carbon and Chemicals/G NXT Power Corp): Did not seriously dispute the recording of consent but had no objection to the deletion of the sentence and its substitution to maintain the judgment's continuity and reasoning.

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Heard together (4 matters)

RP.No.505 OF 2020
WP(C). 2457/2019
RP.507/2020
WP(C). 2981/2019

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942 RP.No.505 OF 2020 IN WP(C). 2457/2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 2457/2019(F) OF HIGH COURT OF KERALA REVIEW PETITIONERS/RESPONDENTS 1 TO 4: 1 UNION OF INDIA, REP BY ITS SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF EXCISE AND CUSTOMS) NORTH BLOCK, NEW DELHI-110 001 2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110 001,REPRESENTED BY ITS CHAIRMAN 3 COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, COCHIN-682 009 4 DEPUTY COMMISSIONER OF CUSTOMS (REFUNDS AND DRAWBACK) CUSTOM HOUSE,COCHIN-682 009 BY ADV. SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS RESPONDENT/WRIT PETITIONER: SOUTHERN CARBON AND CHEMICALS PERLACHITHRA, VAYLOPILLY LANE, AZAD ROAD, KALOOR, COCHIN-682 017, REPRESENTED BY ITS PARTNER AND ITS AUTHORIZED SIGNATORY SRI. BABU THOMAS THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 01.10.2020, ALONG WITH RP.507/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.Nos.505 and 507 OF 2020 - 2 - IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942 RP.No.507 OF 2020 IN WP(C). 2981/2019 AGAINST THE ORDER/JUDGMENT IN WP(C) 2981/2019(W) OF HIGH COURT OF KERALA REVIEW PETITIONERS/RESPONDENTS 1 TO 4: 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL BOARD OF EXCISE AND CUSTOMS) NORTH BLOCK, NEW DELHI 110 001 2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110 001, REPRESENTED BY IT CHAIRMAN. 3 COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, COCHIN 682 009 4 DEPUTY COMMISSIONER OF CUSTOMS (REFUNDS AND DRAWBACK) CUSTOMS HOUSE, COCHIN 682 009 BY ADV. SRI.P.R.SREEJITH RESPONDENT/WRIT PETITIONER: 1 G NXT POWER CORP VYLASSERRY ROAD, PALARIVATTOM P.O, COCHIN 682 025 REPRESENTED BY ITS MANAGING PARTNER HARISH KUMAR. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 01.10.2020, ALONG WITH RP.505/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.Nos.505 and 507 OF 2020 - 3 -

O R D E R [ RP.505/2020, RP.507/2020 ] Dated this the 1st day of October 2020 Heard Adv.P.R Sreejith, Senior Standing Counsel for review petitioners and Adv.John Varghese for respondent.

2.

The respondents in W.P(C) Nos.2981 of 2019 and 2457 of 2019 are the review petitioners. The review petitions refer to a few alleged patent errors on record in judgment dated 29.08.2019. But at the time of arguments, the emphasis of counsel for review petitioners, is on the concluding line in paragraph No.4 of the judgment, which reads as follows: “The counsel have consented to disposing of the writ petition by this order:”

3.

According to Adv.P.R.Sreejith, he has while arguing the writ petitions, referred to the admitted dates and events in the matter, and also the judgment of High Court of Gujarath in M/s.Amit Cotton Industries Vs. Principal Commissioner of Customs

RP.Nos.505 and 507 OF 2020 [(2019) 68 GSTR 226 (Guj)]. However, even as on that day, he had instructions from review petitioners that the Department was taking steps to challenge the legality or otherwise of the judgment dated 27.06.2019 in R/Special Civil Application No.20126 of 2016. Therefore, the inclusion of 'consent' in the judgment is an error apparent on the face of record, he requests the Court to delete the said sentence and judgment could be made, by referring to the view taken by the High Court of Gujarath and eventually, what could happen in M/s.Amit Cotton Industries Vs. Principal Commissioner of Customs would follow suit in the present case as well.

4.

Adv.John Varghese to the extent of consent recorded in the judgment, does not seriously dispute as to what happened in the Court while the judgment dated 29.08.2019 was dictated in the open Court. He has no objection for deleting the sentence excerpted above and substitute the sentences accordingly and ensure continuity in reasoning and conclusion in the judgment

RP.Nos.505 and 507 OF 2020 pronounced by this Court.

5.

After taking note of the submissions and perusing the record, this Court is of the view that the sentence excerpted above apparently is contrary to the stand of Adv.P.R Sreejith, hence directed to be deleted from the judgment dated 29.08.2019 and in its place the following sentence may be incorporated by substitution: “Instead of calculating interest on the amounts to be refunded by both parties, this Court is of the view that refund can be directed to be made by the respondents herein after adjusting the amount recoverable from writ petitioners. The writ petition stands disposed of by this judgment”. Review petitions are ordered accordingly. S.V.BHATTI JUDGE JS

RP.Nos.505 and 507 OF 2020 - 6 -

Appendix — schedule of exhibits
APPENDIX OF RP 505/2020 PETITIONER'S/S EXHIBITS: ANNEXURE-I TRUE COPY OF THE JUDGMENT DATED 19.6.2020 IN WA 2314/2019 OF THE DIVISION BENCH OF THIS HONOURABLE COURT RP.Nos.505 and 507 OF 2020 - 7 - APPENDIX OF RP 507/2020 PETITIONER'S/S EXHIBITS: ANNEXURE 1 TRUE COPY OF THE JUDGMENT DATED 19-06- 2020 IN WA 2313/2019 OF THE DIVISION BENCH OF THIS HONOURABLE COURT.

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.