:1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.63 OF 2010 British Airways Plc. Having its office at Terminal-II, Sahar International Airport, Sahar, Mumbai – 400 099. ..Petitioner Vs. 1. Union of India c/o.Central Govt. Advocate, Aayakar Bhavan, New Marine Lines, Mumbai – 400 020. 2. D.P.Singh, Jt.Secretary, Government of India, having his office at Hudco Vishala Building, 6th Floor Bhicaji Cama Place, New Delhi – 110 066. 3. R.C.Sharma, Senior Technical Officer, in the office of Jt.Secretary, Government of India, Hudco Vishala Building, 6th Floor, Bhicaji Cama Place, New Delhi – 110 066. 4. D.S.Negi, Commissioner of Customs (Appeals) having his office at Chhatrapati Shivaji International Airport, Mumbai – 400 099. 5. V.D.Ganpule, Assistant Commissioner of Customs, having his office at Chhatrapati Shivaji International Airport, Mumbai – 400 099. ..Respondents :2: Mr.Manoj Sanklecha a/w Mr.Sandeep Goyal and Ms.Khushnama Gazdar i/b. Mulla & Mulla & Craigie Blunt & Caroe for the petitioner. Mr.Vijay Kantharia with Mr.J.B.Mishra and Rutuja Ambekar for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE :- 26TH JULY, 2010. JUDGMENT (PER : V.C.DAGA,J.) 1. This petition is directed against the order dated 2nd July, 2008 passed by the Joint Secretary to the Government of India, rejecting the revision application filed by the petitioner holding it to be time barred without going into the merits of the case. This revision application was directed against the Order-in-original dated 11th October, 2005 passed by the Commissioner of Customs (Appeals) arising out of the Finance Act,1979 (“the Act” for short) and the Foreign Travel Tax Rules,1979 (“the FTT Rules” for short). FACTUAL MATRIX 2. That the petitioner is engaged in the business of transporting people by Air on International routes from and to Mumbai. The petitioner is required to collect Rs.500/- from every passenger, to undertake a journey to the place outside India in petitioner’s air-craft. This amount so collected as Foreign Travel Tax (“FTT” for short) under the said Act is required to be deposited with the RBI. The petitioner had collected Rs.23,50,500/- for the month of October, 1996 as FTT and was required to deposit the same with the RBI by 30th November, 1996. The petitioner deposited the same on 27th December,1996 – thereby a delay of 27 days had caused in depositing the same . 3. Similarly, the petitioner had collected Rs.35,84,700/- for the month of January, 1997 as FTT and was required to deposit the same with the RBI by 2nd March,1997, however, the same has been deposited on 13th March,1997, there :3: was a delay of 11 days, whereas the FTT of Rs.32,02,050/- collected for the month of September, 1997 was required to be deposited with the RBI by 30th October, 1997, however, it was deposited on 4th November, 1997 which thereby caused a delay of 4 days in depositing the said amount. 4. It appears that respondent No.5 noticing delayed deposits; issued show cause notices to the petitioner to show cause as to why penalty should not be imposed upon the petitioner for delayed deposits of FTT under the said Act and Rules framed thereunder. The said show cause notices were replied by the petitioner. The contentions raised in defence were rejected by respondent No. 5 vide his order dated 29th March, 2000 and confirmed all the show cause notices and imposed penalty of Rs.18,00,000/- under Section 38(3) and (4) of the said Act and a penalty of Rs.15,000/- under Rule 10A of the said Rules. 5. The petitioner, aggrieved by the above order, filed an appeal before respondent No.4. The respondent No.4 vide his order dated 7th January, 2003 set aside the order dated 29th March, 2000 passed by respondent No.5 on the ground that show cause notices issued to the petitioner did not allege violation of Section 38 of the Act and therefore they were bad and illegal and matters were remitted back for fresh action. 6. It appears that respondent No.5 issued three fresh show cause notices to the petitioner on 6th March, 2004 calling upon it to show cause as to why penalty should not be imposed under Section 38(3) of the said Act for late deposit of FTT with the RBI for the months of October,1996, January,1997 and September,1997. The petitioner filed its reply to all the cause notices pointing out that the issues raised in the show cause notices dated 6th March,2004 were a subject matter of earlier show cause notices which have been set aside. The respondent No.5, by his order dated 9th November,2004 imposed a penalty of Rs.18,27,630/- under Section 38(3) of the said Act upon the petitioner holding that there was no time limit prescribed for issuing show cause notices. :4: 7. Being aggrieved by the aforesaid order dated 9th November, 2004 passed by respondent No.5, the petitioner preferred an appeal to respondent No.4 on 11th January,2005. The respondent No.4 vide its order dated 11th October, 2005, which was received by petitioner on 4th October, 2007, dismissed the appeal filed by the petitioner. 8. Not satisfied with the aforesaid order, the petitioner invoked revisional jurisdiction of respondent No.2 under Section 129DD of the Customs Act. The respondent No.2 vide its order dated 2nd July, 2009 dismissed the revision application on the ground that it was time barred since it was filed almost two years after the order dated 11th October, 2005 passed by respondent No.5. 9. The petitioner, after receipt of the said order, filed a Miscellaneous/Rectification Application on 15th July, 2009 with respondent No. 2 on the ground that there had been gross injustice caused to the petitioner inasmuch as an order had been passed on an issue which was never a subject matter of dispute between the petitioner and the respondents. The said Rectification Application was rejected by respondent No.2, the communication of which was received by the petitioner through respondent No.3, wherein, respondent No.2 was pleased to hold that Rectification Application cannot be considered, since he had become functus officio. 10. Being aggrieved by the aforesaid order dated 11th October, 2005, 2nd July, 2009 and 9th November, 2009, the petitioner has preferred the present writ petition filed under Article 226 of the Constitution of India. SUBMISSIONS 11. Mr.Sanklecha, learned Counsel appearing on behalf of the petitioner urged that Notification No.1 of 2003, dated 13th October, 2003 amending Rule 11 of the said Rules is only prospective in nature. He further urged that the impugned order is in breach of principles of natural justice inasmuch as the :5: order is based on the issue which was never a subject matter of dispute. According to him, the petitioner, on oath had stated in its Revision Application dated 3rd January, 2008 that the order dated 11th October,2005 was received by it on 4th October, 2007. The Revision Application was accepted by the office of respondent No.2 without any objection and thereafter Revision Application was registered as application No.371/2008. At no point of time, any objection relating to the question of limitation was raised by respondent No.2 and/or his office. On 16th January, 2009 when the petitioner was heard on its Revision Application by the predecessor of respondent No.2, no issue was raised with regard to the application being time barred and arguments on merits were heard by respondent No.2. According to him, further fresh hearing took place on 19th March, 2009. On 19th March,2009, no issue with regard to the Revision Application being time barred by limitation was ever raised. The petitioner’s submissions on merits as well as various judgments cited were noted by respondent No.2. Consequently, according to Mr.Sanklecha, it was expected that respondent No.2 would pass an order on merits of the revision application as there was no issue with regard to limitation. Then, on 2nd July, 2009, respondent No.2 after recording various submissions made by petitioner on merits as well as various judgments, dismissed the Revision Application on the ground that the same had been filed almost two years after the order dated 11th October, 2005 was passed by respondent No.4. In these circumstances, the submission is that respondent No.2 has committed gross injustice and made the entire hearing process an empty formality by deciding an issue which was never raised. 12. Mr.Sanklecha, further urged that in terms of Section 129DD of the Customs Act,1962, a Revision Application was filed within three months of the communication of the order passed by respondent No.4. In the present case, the order was received by the petitioner on 4th October, 2007 as stated in the Revision Application. As such, the Revision Application was well within the statutory period of limitation provided in Section 129 DD of the Customs Act, :6: 1962 and ought to have been disposed of on merits. The reliance on Section 153(a) of the Customs Act,1962 by respondent No.2 in the order dated 2nd July,2009 in holding that the litigation was time barred would have no application in the present case as the same would have application only where the party concerned has not received the order passed by respondent No.2. In any event, in terms of Section 129DD of the Customs Act,1962, the period for filing a Revision Application is three months from the date of receipt of the order against which the application is made and not three months from the date on which the order is sent by Registered Post by respondent. In these circumstances, it is submitted that the impugned order is completely without jurisdiction inasmuch as the period of three months is to be computed from the date of order as received by a party who prefers a Revision Application to respondent No.2. 13. It is further contended by Mr.Sanklecha that the communication dated 29th October, 2009 by respondent No.3 in response to the application dated 15th July, 2009 seeking reconsideration of the matter as the issue of limitation was never put to them at the hearing, informing them the needed consideration. The finding that respondent No.2 had become functus officio is completely without jurisdiction and bad-in-law. It is further contended that the Revision Application was made by the petitioner to respondent No.2, who, in turn, was obliged to consider the same on its own merits and was expected to pass an order on the Rectification Application. According to him, a quasi judicial authority cannot communicate his order orally through his subordinates but has to give reasoned order. 14. Without prejudice to the above, Mr.Sanklecha submits that every authority has an inherent power to review and rectify its own orders which are incorrect and/or wrong. According to him, the Apex Court, in the matter of Honda Seil reported in 2007 (12) SCC 596 has held that when a mistake or an error arises in an order, then the authority concerned is obliged to :7: review/correct its mistake. In the present case, the issue of limitation was never raised between the respondents and the petitioner so far as the Revision Application filed by the petitioner against the order dated 11th October, 2005 which respondent No.4 was concerned. Consequently, the order dated 2nd July, 2009 disposing of Revision Application on an issue which was not a disputed issue is a mistake which respondent No.2 was obliged to correct. As such, respondent Nos.2 and 3 ought to have followed the binding decision of the Apex Court in Honda Siel (Supra). 15. Mr.Sanklecha relying on the Apex Court decision in the case of Grindlays Bank 1980 (Supp.) SCC 420, submits that every Court/Tribunal has an inherent power of procedural review which is different from review on merits. A procedural review is inherent in every authority to set aside an erroneous order if passed due to procedural defect. Mr.Sanklecha urged that, in the facts and circumstances, respondent No.2 ought to have dealt with the aforesaid submissions made in the Rectification Application dated 15th July, 2009 by a proper speaking order and could not have communicated the same through his subordinates without any application of mind. 16. Mr.Sanklecha also contended that in the matter of Central Bank of India 2003(6) SCC 573, it has been held that where a party feels that the happenings in Court have not been correctly recorded, then it must bring to the notice of the person who passed the order to have the same corrected. The very fact that respondent No.2 does not dispute the statements made in the Rectification Application dated 15th July,2009, it follows that it is an accepted position that the issue of Revision Application being time barred was not an issue raised before respondent No.2 and consequently, the order itself is in breach of principles of natural justice. 17. Mr.Sanklecha after making serious grievance against the impugned order, wherein, the Revision Petition was held to be barred by limitation, :8: switched on to canvass contentions on merits of the matter contending that Rule 11 of the FTT Rules on 13th October, 2003 can not govern breaches committed by the petitioner in the year 1996-97 under the FTT Rules since it cannot be given retrospective effect or it can only apply in respect of offences committed only after 13th October, 2003. He also urged that Central Government has no power to make Rules with retrospective effect i.e. after 13th October, 2005. He, thus, submits that the impugned order is liable to be quashed and set aside. PER CONTRA: 18. Mr.Kantharia, learned Counsel appearing on behalf of the Revenue urged that Revisional Authority has given a categorical finding that the Order- in-Original dated 11th October, 2005 was communicated to the petitioner by the appellate Authority by Registered Post on 14th October, 2005. On a query made by this Court, the respondents have produced the outward register interalia; showing the communication having been sent to petitioner on 14th October, 2005 and has also filed a photocopy of the same along with an Affidavit in this regard. A very fact that there is a discussion on the aspect of delay in filing the Revision Application in the order passed by the Revisional Authority, amply suggests that the petitioner was heard on the issue of delay. Moreover, the findings of the Revisional Authority are the findings of the facts based on material available on record as such, this Court in its writ jurisdiction should not show indulgence in favour of the petitioner. Moreover, it is for the petitioner to satisfy the Revisional Authority as to how the order was received by it and on which date. The petitioner has chosen to remain silent on this aspect and merely made an averment that the Order-in-appeal was issued by it on 4th October, 2007. The petitioner has not explained as to how they obtained Order-in-appeal on 4th October, 2007. He submits that in the affidavit-in-reply of Mr.Vinay Kumar, has categorically pointed out that “a demand notice based on the order dated 11th October, 2005 of respondent No.4 was issued by respondent No.5 on 12th May, 2006 and the same was received by the :9: petitioner on the same day i.e. on 12th May, 2006”. It is further pointed out that “subsequently, reminders were also issued on 13th February, 2007 and 25th June,2007, which were received by the petitioner on 15th February, 2007 and 25th June, 2007 respectively”. 19. Mr.Kantharia, submitted that the Advocate petitioner, vide his letter dated 4th July, 2007 had requested for a copy of appellate order dated 11th October,2005. All this goes to show that the appellate order dated 11th October, 2005 was communicated to the petitioner on various dates. 20. Mr.Kantharia further submits that, Rule 15(2) of the FTT Rules interalia; provides, “an application under sub rule(2) shall be made within six months from the date of the communication to the applicant of the order against which the application is being made”. It is, thus, clear that the appellate order dated 11th October, 2005 was communicated to the petitioner and that it was for the petitioner to make out the case specifically pointing out the date and the manner in which the order was received by it on 4th October, 2007. The petitioner has failed before the Revisional Authority as well as this Hon’ble Court to point out in clear terms as to how it obtained or received the order on 4th October, 2007. This clearly shows that the petitioner has sought to take the dishonest stand by making patently false statement. 21. Mr.Kantharia also tried to put his own interpretation of Rule 11 of the FTT Rules and also tried to justify that this Rule can govern breaches committed by the petitioner in the year 1996-97 under the FTT Rules,1979. CONSIDERATION: 22. Having considered the rival submissions, the impugned order passed by respondent No.2 in unequivocal terms mentions, as under: “In the light of the aforesaid discussion, Govt. rejects the Revision Application being time barred, without going into the merits of the :10: case.” (Emphasis supplied) 23. Reading of the aforesaid extracted portion goes to show that the Revisional Authority did not go into the merits of the matter raised by the petitioner. The Revision Application was solely decided on the question of limitation. The Revisional Authority, ultimately held that the Revision Application was barred by limitation. In these circumstances, this Court would not be justified in dealing with the submissions on merits of the matter canvassed by the petitioner and the respondents. 24. It is no doubt true that there is no material on record to justify that at any point of time, the issue of limitation was raised by the respondents or by the Revisional Authority. The petitioner was never put to notice that the Revision Petition filed by them was barred by limitation. Had this aspect of the matter been put to the petitioner, the petitioner would have got an opportunity to rebut the contentions and reply to the said issue before the Revisional Authority. It was expected on the part of the Revisional Authority to raise the objection in this behalf before registering the Revision Petition. The very fact that the Revision Petition was registered, goes to show that the point of limitation was neither raised by its Registry nor by the Revisional Authority. 25. The petitioner has made a statement on oath that at no point of time, the said issue was raised by the Revisional Authority and had no opportunity to demonstrate that how the Revision Petition was within time. According to the learned Counsel for the petitioner, had the Revisional applicant been put to a notice, perhaps it would have been open for the petitioner to pray for condonation of delay. He, thus, submits that the case of the petitioner is seriously prejudiced. According to him, for the first time, the question of limitation cropped up because of its mention by the Revisional Authority in its order. He further submits that the impugned order is in breach of principles of :11: natural justice. Mr.Kantharia, learned Counsel appearing on behalf of the respondents, could not rebut above submission, though he tried to justify the findings on merits. 26. We are convinced by the fact that the petitioner’s contention relating to the question of limitation was neither raised by the respondents nor by the Revisional Authority at no point of time. Consequently, the petitioner had no opportunity to meet the question relating to the limitation. 27. In the aforesaid circumstances, we refrain from dealing with the issues relating to the merits of the matter and we deem it fit to quash and set aside the impugned order and remit it back to the Revisional Authority for consideration afresh giving an opportunity to the petitioner-applicant to demonstrate how the revision is in time and if necessary, it would be open for the Revisional-applicant to apply for condonation of delay, if permissible in law. It is needless to mention that the Revisional Authority shall afford full opportunity to the Revisional applicant either to demonstrate that its Revision Petition is within time or to move an application for condonation of delay, which the Revisional Authority may consider it on its own merits, including the maintainability thereof in accordance with law. All contentions on this count as well as on merits are kept open. It is expected on the part of the Revisional Authority to decide the petition with expeditious dispatch at any rate within 3 months from the receipt of the copy of this order. 28. In the above view of the matter, Rule is made absolute in terms of this order with no order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)