1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 26 OF 2010 IN CIVIL WRIT PETITION NO. 7516 OF 2006 IN CIVIL WRIT PETITION NO. 7516 OF 2006 AND CUSTOMS APPEAL NOS. 4 OF 2007 WITH CUSTOMS APPEAL NO. 10 OF 2007 WITH CUSTOMS APPEAL NO. 11 OF 2007 WITH CUSTOMS APPEAL NO. 97 OF 2006 WITH CUSTOMS APPEAL NO. 36 OF 2007 WITH CUSTOMS APPEAL NO. 37 OF 2007 M/s. Deepali Exports and another ... Petitioners Versus Union of India and Ors. ... Respondents Mr. J. Reis with Mr. A. Sachwani and Mr. V. Advani and Mr. R.R. Shah and Mr. N.J. Heera i/by Advani Sachwani & Heera for Petitioner. Mr. R.V. Desai, Sr. Counsel with Mr. Rohit Pardeshi for Respondents. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : APRIL 30, 2010 P. C.: These appeals had been preferred by the Revenue on the following questions : 2 (a) Whether the importation of restricted goods under forged REP licences is invalid and void ab- initio and liable for absolute confiscation under Section 111(d) of the Customs Act, 1962? (b) Whether in the facts and circumstances of the case and in law the Hon’ble Tribunal was justified in reducing the penalty imposed under Section 112(a) of the Customs Act, 1962 upon the Respondents by the Commissioner of Customs, in respect of rough diamonds imported on the strength of forged licences, which were ordered to be confiscated under Section 111(d) of the Customs Act, 1962 but were not available for confiscation?” A writ petition was also filed by the assessee to implement the order of the tribunal. 2. After hearing the parties, by our judgment dated 31.7.2009, we modified the order of the tribunal and enhanced the penalty. Similarly we had permitted redemption at the rate of 20% of the diamonds seized from M/s. Dipali Exports and M/s. Vijay Bhav Exports. 3 3. The review petition was preferred before us by the Petitioners who had filed writ petition and were also respondents in the appeals contending that this court passed order confirming the order of confiscation but directed release of diamonds on payment of redemption fine. The diamonds in fact were not available when the order was passed. The review was sought on that ground. 4. At the hearing of the review petition, on behalf of the revenue, it is contended that considering Section 130 as it then stood, the power of review has not been conferred on this court under the Customs Act and consequently review would not lie. What would be available is an appeal by an aggrieved party to the Hon’ble Supreme Court. 5. In response on behalf of the Assessee, their learned counsel submits that if a fraud is played on the court that would vitiate all actions and even otherwise, the court cannot be a helpless spectator on the facts and circumstances of the case. 6. We have heard the learned counsel for the parties and respective contentions. The objections raised by the Revenue will have to be accepted as the power of review has not been conferred. It is now settled law that unlike procedural review, the power of substantive review must be conferred. The 4 Customs Act, 1962 does not confer any power in the High Court which acts as Appellate Court under the Customs Act to exercise the power of review. 7. On the facts it will not be possible for us to accept the submission of the counsel for the assessee that fraud was played on the Court. It appears that the Revenue counsel were not briefed and were unaware that the diamonds were sold by e-auction when the appeals were pending before the tribunal. At the same time, this court can take note of the fact that perhaps its order could have been influenced by the fact that the diamonds were available for redemption. 8. The court had proceeded on the basis that the diamonds were available and now it has come on record that the diamonds are not available. That judicial conscience of the court must be satisfied that justice has been done according to law. Without going into the other aspects of the matter, in our opinion, this will be a fit case for us to exercise our inherent jurisdiction and recall the order dated 31.7.2009 so that both parties have a fresh opportunity. In the light, of that order dated 31.7.2009 stands recalled. The appeals and petitions are restored, to be heard and disposed of on merits. The Registry is directed to place the matters before the appropriate Bench. (J.H. BHATIA ,J.) (F.I. REBELLO,J.) 5