Central Excise - Can High Court Review Its Own Order?
RECENTLY there was a strange case in the Bombay High Court. Both the Petitioner-assessee and the Respondent-Revenue jointly canvassed in one voice that the High Court has the power of review even in the absence of specific provision within statutes (like the Central Excise Act or Customs Act or Income Tax Act). Both of them want that the question should be answered in affirmative holding power of review in favour of the Court.
But why this rare camaraderie? And why do they both want the same decision? It is not as if one is conceding to the other. Here is a win-win-win situation.
The Bombay High Court had earlier held that the High Court had no power to condone delay in Central Excise appeals. Later a Larger Bench of the same Court held that it indeed had the power. The Supreme Court held that the High Court had no such power as the Central Excise Act did not provide for any such condonation.
In the process, who lost? Mostly Revenue, as they are the habitual delayists ! So a smart government brought in a retrospective legislation conferring such power on the High Courts.
So, now the legal position is that High Courts have power to condone delay from 2003.
Several appeals filed by the government were dismissed in the last couple of years, on limitation and on the ground that High Court cannot condone delay. Now the law (retrospective) says it can.
Now, can the cases already dismissed be reviewed in view of the change in Law(retrospective)? Unless the verdict is YES, the Government will not get much benefit from the retrospective amendment of the Law. So the wise Counsel for the Government fairly argued in support of the assessee, whose delay was only four days, while the Government's delay would be hundreds of days in hundreds of cases.
The High Court finally held that it had the power to review its own order.
A small step for one assessee, but a giant leap for the Revenue.
The High Courts will now be flooded with review petitions from the Revenue and the assessees who are sleeping happily enjoying the government's failure to file appeal on time, will be jolted out of their slumber to face cases about which they forgot long ago.
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