TIOL-DDT 2783
10 02 2016
Wednesday

IN limine means on the threshold, at the very outset.

The Supreme Court in  Kunhayammed v. State of Kerala - 2002-TIOL-50-SC-LMT-LB dwelt extensively upon the aspect as to when a decision of the Court in a SLP would be binding and when not. The Court observed that there are two distinct stages:

(a) Granting of special leave to appeal; and

(b) Hearing the appeal.

If the SLP is dismissed at the stage of special leave without a speaking or reasoned order, there is no res judicata, no merger of the lower order and the petitioner retains the statutory right, if available of seeking relief in review jurisdiction of the High Court.

If the SLP is dismissed at the first stage by a speaking reasoned order, there is still no merger but rule of judicial discipline and declaration of law under Article 141 of the Constitution will apply. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave.

Once leave is granted but SLP converted into appeal is dismissed with or without reasons, merger results and law is declared. It is no longer permissible to move the High Court by review and no Court, Tribunal or Authority can express any opinion contrary to the view taken by Supreme Court. Order appealed against can be reversed, modified or affirmed by the Supreme Court in exercise of appellate jurisdiction at the second stage only and not at the discretionary first stage of special leave under Article 136 of the Constitution of India.

Supreme Court has in some other cases explained:

When the Review will be maintainable :

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to re-open concluded adjudications;

(ii) Minor mistakes of inconsequential import;

(iii) Review proceedings cannot be equated with the original hearing of the case;

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter has been negatived.

Board wants the field formations to keep in mind the above, while interpreting the Supreme Court's dismissal of SLP 'in limine'. If the SLP has been dismissed ' in limine' there cannot be any ground for filing a review petition.

CBEC Instruction in F.No.276/114/2015-CX.8A; Dated: February 09 2015

Has the Board changed its view? Board faced a similar issue a couple of years ago when its SLP was dismissed in limine and the Board wanted to file a review petition. The Additional Solicitor General opined,

Even otherwise, I am unable to understand what purpose will be served by filing a review petition in a case where the Hon'ble Supreme Court has dismissed a SLP in limine without assigning any reasons. An in limine dismissal merely means that the Hon'ble Supreme Court did not find it an appropriate case to consider the matter. Such an order does not amount to law declared under Article 141 of the Constitution of India (Kunhayammed Vs State of Kerala)

Board in F.No, 276/125/2012-CX.8A.CUS, dated 25.08.2014, in spite of the opinion of the ASG felt that since Department has prima facie a strong case on merit in its favour, field formations should take up all such cases for filing of Appeal before the Courts/Tribunal. (DDT 2427 01 09 2014)

All Industry Rates of Duty Drawback - Amendments

THE Government considered representations, feedback and data related to the All Industry Rates (AIR) of Duty Drawback that took effect on 23.11.2015 and has notified certain changes vide Notification No. 22/2016-Customs (N.T.) dated 08.2.2016. These changes take effect from 11.02.2016.

CBEC Circular No. 06/2016-Customs, Dated: February 09, 2016

Monitoring of realisation of Export Proceeds

THE Bengaluru Air Customs Commissionerate reminds that it is mandatory for all exporters to submit BRC/ Negative statement in the prescribed Annexure every six months i.e., for the period from January to June and July to December.

It is seen that many of the BRCs/ negative statements/ CA/AD certificates submitted, are found deficient due to various errors related to AD codes such as non-registered AD codes, entry rejections by the system due to multiple AD codes etc., and hence, such documents could not be entered in the system. The Exporters are requested to rectify the same and resubmit all such relevant documents. In this connection, it is once again impressed upon the trade that along with BRCs, there is the option of submitting certificates from Chartered Accountant / Authorised dealer(s) - AD-wise at each port for each of the six-monthly certificates.

The Commissionerate requests all the exporters to submit the BRCs/ negative statements, failing which appropriate action available under the Customs Act, 1962 will be initiated to recover the drawback amount sanctioned along with interest.

Bengaluru Air Customs Public Notice No.07/2016; Dated: February 05 2015

Manner of Signing of Certificates by Chartered Accountants

THE Council of the Institute of Chartered Accountants of India (ICAI), at its 349th meeting held on 17th and 18th January, 2016 considered an issue relating to manner of signing of certificates by Chartered Accountants. The Council noted that different practices were in vogue in respect of the manner of signing of various certificates issued by the members of the ICAI.

On a consideration of the matter, the Council, with a view to bring uniformity in the manner of signing of certificates, has decided to require the members of the ICAI to include (in addition to any other requirements in this regard prescribed by the relevant law or regulation under which the certificate is being issued) the following details in their "Signatures" on the certificates issued by them:

a. Name of the CA firm

b. Firm Registration Number (FRN)

c. Name of the member

d. Designation (Partner/Proprietor)

e. Membership Number

Increase in Tariff Values of gold and silver

GOVERNMENT has increased the Tariff value of gold and silver. There is no change in the tariff values of other commodities.

Notification No. 23/2016-Customs (NT), Dated: February 09, 2016

Until Tomorrow with more DDT

Have a nice day.

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