SCA/11961/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11961 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GUJARAT STEEL INDUSTRIES & 3 - Petitioner(s) Versus UNION OF INDIA & 3 - Respondent(s) ========================================= Appearance : MR PARESH M DAVE for Petitioner(s) : 1 - 4. MR YN RAVANI for Respondent(s) : 1 - 4. ========================================= = CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 16/07/2008 SCA/11961/2006 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. This petition has been preferred challenging the order dated 20th July, 2004 passed by the Settlement Commission of Customs & Central Excise, Additional Bench, Mumbai (hereinafter referred to as “the Commission”). The petitioners approached Settlement Commission with an application for settlement of certain disputes. After hearing the petitioners and the representatives of Revenue, vide final order No.12/CEX/2002 dated 23.5.2002, the Commission decided the settlement application moved by the petitioners. The petitioners filed a Miscellaneous Application dated 1.1.2004, submitting that two factual errors amounting to error apparent on record were committed by the Commission while passing the final order. According to the petitioners, the said two errors were, [1] not extending the benefit of deemed credit on the basis of decision in the case of M/s Digambar Foundry, reported in 2000 [118] ELT 85 (T-LB) of the Larger Bench of the Tribunal, and [2] immunity from prosecution was not granted under the impression that prosecution had already been launched. Vide the impugned order, the Miscellaneous Application has been rejected by the Commission. 2. On behalf of the petitioners, the impugned order was assailed on the ground that the Commission had erred in law in holding that the Commission had no powers to review its own order once the final order was made. In SCA/11961/2006 3/6 JUDGMENT this connection, reference was made to the observations made in paragraph No.7 of the impugned order. 2.1 In relation to the finding as to non-availability of deemed credit, the submission was that the Commission had not correctly appreciated the Larger Bench decision of the Tribunal, because as per the said decision itself, deemed credit was not available in a case where exemption limit of Rs.75 lakhs had been crossed, but the same was not the case of the petitioners. 2.2 In relation to the launching of prosecution, it was submitted that the Commission had failed to correctly appreciate the facts because no prosecution had actually been launched and the partners of petitioner No.1 firm had merely been arrested and produced before the Magistrate, which fact by itself would not amount to launching of prosecution. That no criminal complaint was filed by the Revenue, nor any charges were framed by the Trial Court. 3. In the impugned order, the Commission has, in connection with the plea regarding deemed credit, observed as under : “[5] The Commission informed the Ld. Advocate for the applicant that it was apparent from the final order dated 23.05.2002 passed by the Commission that these submissions were thoroughly considered and the deemed credit plea has been consciously rejected. The Bench, therefore, informed that there is no error apparent on face of the records and SCA/11961/2006 4/6 JUDGMENT hence, the Bench cannot review the order.” 4. Insofar as launching of prosecution is concerned, paragraph No.6 of the impugned order reads as under: “[6] The Commission enquired from the Revenue as to whether any prosecution proceedings were launched against the applicant. The Revenue submitted that criminal complaint had already been filed; however, as regards launching of prosecution, he would inquire with the legal cell and inform the Commission. The Commission directed the Revenue to give a written note on the prosecution aspect. The Commissioner of Central Excise II, Ahmedabad vide letter dated 13.07.04 has intimated that prosecution in this case had been sanctioned by the Commissioner, Central Excise, Ahmedabad vide Sanction Order No. Legal/Pros-4/96 dated 17.05.96 against the applicant and several others based on which criminal complaint No.155/1996 was filed in the Court of the Additional Chief Metropolitan Magistrate, Ahmedabad.” 5. The observations made in paragraph No.7 have to be read and appreciated in context of the aforesaid findings recorded by the Commission in relation to the two errors stated to be mistakes apparent from record. If the Commission had accepted, even prima facie, that there were errors apparent on record, but thereafter held that the Commission could not interfere / rectify because the Commission had no powers to review / rectify its own SCA/11961/2006 5/6 JUDGMENT order, the matter would have stood on an entirely different footing. In the present case, to the contrary, in relation to both the alleged errors, the Commission has recorded categorical findings. May be, the findings may not be, in the perception of the petitioners, correct. Merely because an order of the Tribunal has been read in a wrong manner, the same does not amount to non- consideration of the said order and cannot be termed to be an error apparent on record. Similarly, whether the fact regarding launching of prosecution has been correctly appreciated or not, may constitute an error, but would not tantamount a mistake apparent on record so as to be amenable to rectification / review. 6. In the present case, the Commission is justified in saying that once certain amounts are settled as being liable to tax after allowing or disallowing certain benefits, the proceedings attained finality and cannot be re-opened so as to take a different view of the matter on the basis of alleged error apparent on record. Same is the position in relation to the factum of not granting immunity from prosecution. 7. In the aforesaid set of facts and circumstances of the case, the petition does not merit acceptance and is, accordingly, rejected. Notice discharged with no order as to costs. [D.A.MEHTA, J.] SCA/11961/2006 6/6 JUDGMENT [HARSHA DEVANI, J.] parmar*